Proliferation Security Initiative

The Issue

The Proliferation Security Initiative (PSI) is an
international effort aimed at interdicting "the transfer or transport of
WMD, their delivery systems, and related materials to and from states
and non-state actors of proliferation concern."[1] The
program involves joint exercises and activities to interdict vessels
suspected of carrying WMD or their components on the high seas. To
accomplish this, many states have begun to adjust their legal frameworks
to permit action, sign ship-boarding agreements and conduct joint
exercises. As of August 2006, PSI has conducted 23 "joint interdiction
exercises."[2]
Originally envisioned as part of the 2002 US National Strategy to Combat
WMD Proliferation, PSI received its final push toward realization when
the international community was unable to interdict a shipment of North
Korean SCUD missiles to Yemen.[3]

PSI was first announced by President Bush on May 31,
2003, and initially consisted of eleven participating states: Australia,
France, Germany, Italy, Japan, the Netherlands, Poland, Portugal,
Spain, the United Kingdom, and the United States. The original eleven
states plus nine others (as of September 2006) are part of the
Operational Experts Group (OEG).[4] The
OEG is supplemented by a large number of states which claim to endorse
PSI's Statement of Interdiction Principles [See Annex A];
at present participation includes 82 states.[5]

Participating states have been careful to note that
PSI is an activity rather than
an organization.[6]
Because of this amorphous structure, most activities carried out under
the guise of PSI have been ad hoc
in nature. However, the actions that have been taken have advanced
PSI's goal of creating "a web of counterproliferation partnerships."[7] A High
Level Political Meeting of participating states in June 2006 expanded
the focus of PSI to include financial transactions meant to facilitate
WMD proliferation.[8]
Several exercises have been held to help train states in carrying out
interdiction operations, including ANATOLIAN SUN, a three day
air/land/sea exercise in Turkey held in May 2006 that included
representatives from 50 countries.[9]

The US has been particularly active in expanding the
initiative. Ship boarding agreements have been signed with Belize,
Croatia, Cyprus, Liberia, the Marshall Islands, Panama, and Malta which
grant the US permission to board and inspect any ships registered to
those countries if they are suspected of transporting WMD-related cargo.[10]
These countries (except for Croatia) are said to have "flags of
convenience," which means they allow foreign-owned ships to fly their
flags, making the foreign ships subject to their laws.[11]

While the US claims to have made, with the help of
its PSI partners, approximately 25 interdictions in 2006, the best known
case of proliferation interdiction was, in fact, not a PSI exercise. In
October 2003, the German-owned ship BBC China, bound for Libya carrying
Malaysian-made centrifuge components for use in enriching uranium, was
diverted to Italy where its cargo was seized in a joint UK-Germany-Italy
operation. It was an exposure of part of the A.Q. Khan network.[12]

PSI commits to ensure its activities work within
existing international law and frameworks. It serves to implement some
of the objectives of United Nations Security Council Resolution 1540,
which calls on all states to set up a legal and regulatory framework to
criminalize WMD possession (if the states lack such a framework) and to
work to prevent the smuggling of weapons of mass destruction and
precursor materials.[13] The
Statement on Interdiction Principles calls for states to refine their
national legal frameworks to allow for the interdiction of WMD material
in their territories. PSI is also compatible with the goals and recent
statements of the G8 Global Partnership Against the Spread of Weapons
and Materials of Mass Destruction. Finally, at the most basic level, the
original PSI participants agreed in the preface to the Statement on
Interdiction Principles "that the PSI is consistent with and a step in
the implementation of the UN Security Council Presidential statement of
January 31, 1992, which states that the proliferation of all WMD
constitutes a threat to international peace and security, and underlines
the need to prevent proliferation."[14]

Despite its ostensible successes, PSI continues to
encounter several legal challenges. The PSI countries are concerned
about the circumstances in which they might legally be justified in
interdicting a WMD or missile shipment and are interested in clarifying
the relevant legal bases for action. Indeed, their first order of
business was to assess their own authorities and export control regimes
in the context of intercepting suspect cargoes within their own
territorial waters, land and air space.

Under the United Nations Convention on the Law of the
Sea,on the high seas (generally twelve nautical miles or more off
shore), ships under a nation's flag are subject to the jurisdiction of
only their flag state and generally may not be boarded by ships not
under the flag of that state (thus the need for Ship Boarding
Agreements). [15] In
territorial waters or straits, ships have the right of "innocent
passage" or "transit passage;" and carrying WMD or missiles as cargo
currently does not, in and of itself, render a ship or plane beyond the
protections of the doctrines of innocent or transit passage. Conversely,
Article 88 of the Convention on the Law of the Sea reserves the high
seas "for peaceful purposes." This raises the question of whether a
shipment of WMD or missiles might legitimately be deemed not peaceful
and thus subject to being seized.

A promising attempt to legalize PSI-like interdiction
efforts is the 2005 amendment to the Convention for the Suppression of
Unlawful Acts Against the Safety of Maritime Navigation (SUA
Convention). Article 4 of the amendment criminalizes the transportation
of WMD, WMD material, and any dual-use technology intended to create
WMD.[16] The
amendment also creates a "comprehensive set of procedures and
protections designed to facilitate the boarding of a vessel" that
eliminate "the need to create time-consuming ad hoc boarding
arrangements when facing the immediacy of ongoing criminal activity."[17]
While 144 states have ratified the original SUA convention, only two
countries have ratified the amendment. Full ratification and entry into
force will likely take years.[18]

In addition to the legal questions facing the PSI in
its efforts to intercept WMD and missile shipments, there is also an
array of practical considerations that could impair its success. Any
efforts to prevent shipments of concealed bomb-grade nuclear materials
would find enormous technical challenges in detecting grapefruit- or
softball-sized quantities shielded and buried in the hulls of freighters
or in intercepting materials on board a jet liner. Politically, too,
there has only been a limited discussion of PSI successes and virtually
no information on any failures. Without this type of data, it is
difficult to assess the initiative's effectiveness or progress.

Obstacles

Small-size
quantities of weapons-grade nuclear materials, shielded and hidden in
the hull of an ocean-going freighter, would be extremely difficult to
detect.

Until
the SUA Convention amendments are ratified, WMD shipments do not, in
and of themselves, subject a ship to interdiction. Other forms of WMD
transshipment may also fall into legal loopholes. Unfortunately, the
2005 Protocol has been signed by only eighteen states.

A UN
Security Council resolution or resolutions could provide new grounds for
intercepting from countries of concern exports or imports of WMD, the
machinery for producing WMD, or missile exports, but obtaining such
resolutions may be difficult.

The current legal frameworks do not permit
interdiction or boarding of "ships owned or operated by a State and used
only on government non-commercial service" or military vessels.[19]

Q & A

Q: What is PSI's
objective?A: According to the White House, PSI's objective is
to interdict shipments of WMD, their delivery systems, and related
materials to and from states and non-state actors of proliferation
concern."[20]

Q: Which states are
members of PSI's Operational Experts Group?A: As of September
2006, the twenty members of the OEG were Argentina, Australia, Canada,
Denmark, France, Germany, Greece, Italy, Japan, the Netherlands, New
Zealand, Norway, Poland, Portugal, Russia, Singapore, Spain, Turkey,
United Kingdom and the United States.

Q: Is PSI an organ
of the UN?A: The PSI is neither a part of nor connected to
the UN, although its attempts at counterproliferation are consistent
with certain edicts of the UN Security Council.

Q: Is PSI aimed at
stopping trade in drugs, counterfeit money, and other illicit items?A:
No. Although Australia and Japan have taken actions against the illegal
North Korean drug trade, the PSI is aimed solely at WMD and related
items.[21]

Q: How will the PSI
determine that a state or other entity is "of proliferation concern" and
what effect will that determination have under international law?A:
The PSI has not specified how it will make that determination nor has
it specified whether or how it would have any significance under
international law. Presumably, any such determinations will simply serve
to focus the efforts of the PSI members, and they will then take any
actions based on principles of international law independent of that
determination.

Q: Will more nations
be joining the PSI?A: As of 1 May 2007, 82 nations have
pledged support for the PSI.[22]
President Bush has called for "all responsible states to join this
global effort to end the WMD proliferation trade."[23]

Quick Facts

Over 80 countries have pledged support for the
Proliferation Security Initiative.

The
US has Ship Boarding Agreements with seven countries, the most recent of
which was signed with Malta in March 2007. Two of these countries,
Panama and Liberia, combine for over 20 percent of world merchant
shipping flags.[25]

Recent Legislation

The
Implementing the 9/11 Commission Recommendations Act of 2007 (H.R.1, not
yet enacted) calls for increased cooperation with non-NATO members and
improved interagency and international cooperation and coordination. The
Act also includes a Sense of Congress provision that says the President
should seek an explicit UN Security Council Resolution authorizing PSI
activities.

The
Cooperative Proliferation Detection, Interdiction Assistance, and
Conventional Threat Reduction Act of 2006 (S. 2566), the provisions of
which were passed in the Department of State Authorities Act of 2006
(Public Law 109-472), authorized the President to conclude bilateral
agreements that would facilitate proliferation interdiction and to
provide friendly countries with interdiction assistance.

The
Cooperative Proliferation Detection, Interdiction Assistance, and
Conventional Threat Reduction Act of 2005 (S. 1949, not enacted)
contained the same provisions as S. 2566, but also established an Office
of Proliferation Detection and Interdiction Assistance Coordination in
the Department of State and mandated that at least one quarter of
military assistance to friendly nations be in the form of proliferation
interdiction assistance.

The
Omnibus Nonproliferation and Anti-Nuclear Terrorism Act of 2005 (H.R.
665, not enacted) called for the expansion of PSI and the authorization
of $50 million for interdiction exercises. The 9-11 Commission Combating
Proliferation Implementation Act (H.R. 422) contained similar
legislation.

Applicable Treaties,
Legislation, and Other International Agreements

The 2005
Protocols to the Convention for the Suppression of Unlawful Acts
Against the Safety of Maritime Navigation (SUA Convention) (14 October
2005)These protocols seek to expand the scope of offenses for which
boarding of a ship is justified to include actions related to
biological, chemical, and nuclear weapons. Transportation of those
materials or precursor technologies is added to the list; however, the
Protocols stipulate that with regard to nuclear material, as long as the
material is transport by, from, or to a State Party to the Treaty on
the Non Proliferation of Nuclear Weapons.

United Nations Security Council Resolution 1540 (28
April 2004)UNSCR 1540
mandated that all states have in place a legislative framework to
criminalize and punish non-state actor involvement in WMD proliferation.
The Resolution also called on states to develop capacities (such as
export controls, border controls, and material licensing systems) to
prevent WMD proliferation on their territories.

The
National Security Strategy of the United States of America 2002
(September 2002)The strategy calls for a more proactive response to
proliferation, with a desire to prevent rogue states and terrorists from
acquiring nuclear technologies. Included in this strategy is the
strategic impetus for the Proliferation Security Initiative, allowing
for the United States to "interdict enabling technologies and
materials."

Convention
for the Suppression of Unlawful Acts Against the Safety of Maritime
Navigation (SUA Convention) (1 March 1992)The main purpose of
the convention is to provide a legal framework of appropriate actions
which may be taken against persons committing unlawful acts against
ships. According to the text, these actions include the seizure of ships
by force; acts of violence against persons on board ships; and the
placing of devices on board a ship which are likely to destroy or damage
it. This Convention was later modified [see 2005 Protocols] to include
transportation or use of WMD or precursor technologies as illegal acts
warranting action.

UN
Security Council Presidential Statement S/23500 (31 January 1992)This
statement, representing the consensus view of the Security Council, was
a response to the sweeping changes in the international system at the
time. One of the major threats which it foresaw was the proliferation of
WMD. Consequently, the members of the Council committed themselves to
take action to prevent the spread of proliferation precursor
technologies.

United
Nations Convention on the Law of the Sea (10 December 1982)This
treaty defines the scope of international rights, protections, and
responsibilities for states operating on the high seas. Included in the
provisions are legal justifications for boarding the vessel of another
state (e.g., slavery, drug trafficking, piracy, and unauthorized
broadcast). Further, the treaty stipulates that the right to interdict
on the high seas does not extend to warships and government vessels (or
non-commercial ships operating on behalf of a government).

Talking Points

There
is a strong desire by the international community to keep weapons of
mass destruction out of the hands of terrorists and rogue states.

The
Proliferation Security Initiative, which is an international activity
involving more than 80 states, seeks to provide a means to act and
coordinate responses to suspected proliferation activity on the high
seas.

The
United States sought to spread the burden as well as gain legitimacy for
the program by including as many states as possible in PSI.

Unfortunately,
there is limited data on the successes or failures of the program so
there is only anecdotal evidence upon which to judge what actual impact,
if any, the activity has had.

Recommendations

A National Security Council designee should spearhead an interagency
process to reassess the global role of cooperative nonproliferation
(CNP) efforts in today's context, including those that have arisen in
the past few years, such as PSI.This
assessment should strive to eliminate duplication, consolidate where
necessary, and fill any gaps within the existing efforts. [See Book Recommendation
#1]

Following a survey and reassessment of its own activities (see
Recommendation #1), the US government should work collaboratively with
other contributors to the Global Partnership Against the Spread of
Weapons and Materials of Mass Destruction in order to identify common
objectives and leveraging opportunities that maximize nonproliferation
program sustainability. [See Book Recommendation
#3]

PSI Members should continue to find ways to conduct PSI
activities under the rubric of United Nations Security Council
Resolution 1540. Coupling the Security Council-mandated standard with a
comprehensive international toolkit of resources (such as PSI) would
achieve an integrated framework for managing supply-side proliferation
risks. [See Book Recommendation
#4]

The United States Congress should establish a bi-cameral
congressional task force to receive regular briefings from an array of
government and non-governmental experts on the activities and objectives
of PSI. [See Book Recommendation
#7]

Annex A

Statement of Interdiction Principles

The Proliferation Security Initiative (PSI) is a
response to the growing challenge posed by the proliferation of weapons
of mass destruction (WMD), their delivery systems, and related materials
worldwide. The PSI builds on efforts by the international community to
prevent proliferation of such items, including existing treaties and
regimes. It is consistent with and a step in the implementation of the
UN Security Council Presidential Statement of January 1992, which states
that the proliferation of all WMD constitutes a threat to international
peace and security, and underlines the need for member states of the UN
to prevent proliferation. The PSI is also consistent with recent
statements of the G8 and the European Union, establishing that more
coherent and concerted efforts are needed to prevent the proliferation
of WMD, their delivery systems, and related materials. PSI participants
are deeply concerned about this threat and of the danger that these
items could fall into the hands of terrorists, and are committed to
working together to stop the flow of these items to and from states and
non-state actors of proliferation concern. The PSI seeks to involve in
some capacity all states that have a stake in nonproliferation and the
ability and willingness to take steps to stop the flow of such items at
sea, in the air, or on land. The PSI also seeks cooperation from any
state whose vessels, flags, ports, territorial waters, airspace, or land
might be used for proliferation purposes by states and non-state actors
of proliferation concern. The increasingly aggressive efforts by
proliferators to stand outside or to circumvent existing
nonproliferation norms, and to profit from such trade, requires new and
stronger actions by the international community. We look forward to
working with all concerned states on measures they are able and willing
to take in support of the PSI, as outlined in the following set of
"Interdiction Principles."

PSI participants are committed to the following
interdiction principles to establish a more coordinated and effective
basis through which to impede and stop shipments of WMD, delivery
systems, and related materials flowing to and from states and non-state
actors of proliferation concern, consistent with national legal
authorities and relevant international law and frameworks, including the
UN Security Council. They call on all states concerned with this threat
to international peace and security to join in similarly committing to:

1. Undertake effective measures, either alone or in
concert with other states, for interdicting the transfer or transport of
WMD, their delivery systems, and related materials to and from states
and non-state actors of proliferation concern. "States or non-state
actors of proliferation concern" generally refers to those countries or
entities that the PSI participants involved establish should be subject
to interdiction activities because they are engaged in proliferation
through:

(a) efforts to develop or acquire chemical,
biological, or nuclear weapons and associated delivery systems; or

2. Adopt streamlined procedures for rapid exchange of
relevant information concerning suspected proliferation activity,
protecting the confidential character of classified information provided
by other states as part of this initiative, dedicate appropriate
resources and efforts to interdiction operations and capabilities, and
maximize coordination among participants in interdiction efforts.

3. Review and work to strengthen their relevant
national legal authorities where necessary to accomplish these
objectives, and work to strengthen when necessary relevant international
law and frameworks in appropriate ways to support these commitments.

4. Take specific actions in support of interdiction
efforts regarding cargoes of WMD, their delivery systems, or related
materials, to the extent their national legal authorities permit and
consistent with their obligations under international law and
frameworks, to include:

(a) Not to transport or assist in the transport of
any such cargoes to or from states or non-state actors of proliferation
concern, and not to allow any persons subject to their jurisdiction to
do so.

(b) At their own initiative, or at the request and
good cause shown by another state, to take action to board and search
any vessel flying their flag in their internal waters or territorial
seas, or areas beyond the territorial seas of any other state, that is
reasonably suspected of transporting such cargoes to or from states or
non-state actors of proliferation concern, and to seize such cargoes
that are identified.

(c) To seriously consider providing consent under the
appropriate circumstances to the boarding and searching of its own flag
vessels by other states, and to the seizure of such WMD-related cargoes
in such vessels that may be identified by such states.

(d) To take appropriate actions to (1) stop and/or
search in their internal waters, territorial seas, or contiguous zones
(when declared) vessels that are reasonably suspected of carrying such
cargoes to or from states or non-state actors of proliferation concern
and to seize such cargoes that are identified; and (2) to enforce
conditions on vessels entering or leaving their ports, internal waters
or territorial seas that are reasonably suspected of carrying such
cargoes, such as requiring that such vessels be subject to boarding,
search, and seizure of such cargoes prior to entry.

(e) At their own initiative or upon the request and
good cause shown by another state, to (a) require aircraft that are
reasonably suspected of carrying such cargoes to or from states or
non-state actors of proliferation concern and that are transiting their
airspace to land for inspection and seize any such cargoes that are
identified; and/or (b) deny aircraft reasonably suspected of carrying
such cargoes transit rights through their airspace in advance of such
flights.

(f) If their ports, airfields, or other facilities
are used as transshipment points for shipment of such cargoes to or from
states or non-state actors of proliferation concern, to inspect
vessels, aircraft, or other modes of transport reasonably suspected of
carrying such cargoes, and to seize such cargoes that are identified.

[16]
International Maritime Organization, Protocol of 2005 to the Convention
for the Suppression of Unlawful Acts Against the Safety of Maritime
Navigation, (November 1, 2005), available from the IMO Library.

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